BIA Decides CSPA Applies Retroactively

Four and a half years after the Child Status Protection Act (CSPA) was enacted, the Board of Immigration Appeals (BIA) has answered the open question regarding the law's retroactive application. Advocates had been arguing for an expansive interpretation of the statute, which would have provided coverage to children who were immediate relatives at the time the visa petition was filed, regardless of whether that was before or after August 6, 2002, the effective date of the CSPA. But the U.S. Citizenship and Immigration Service (USCIS) and Department of State (DOS) had interpreted it more narrowly, and required the filing of an adjustment of status or immigrant visa application prior to August 6, 2002 if the child turned 21 and his or her petition was approved prior to that date.

In a published decision issued on February 9, 2007, the BIA has held that the law applies to visa petitions filed and approved before the effective date of the CSPA, even if the beneficiary aged out and failed to apply for adjustment of status prior to that date. In re Rodolfo Avila-Perez, Int. Dec. #3551 (BIA 2007). This decision mirrors last year's unpublished decision from a district court in California, which rejected the government's restrictive interpretation of the CSPA's application. Rodriguez v. Gonzales, No. CV 04-8671 DSF (AJWx) (C.D. Cal, May 31, 2006). The remaining question now is more a practical one: who will come forward at this late stage to seek the full benefits of this law?

Effect on Immediate Relatives

Both the BIA and the district court cases dealt with similar facts. A U.S. citizen parent filed a Form I-130, Petition for Alien Relative, on behalf of a child under 21, who was classified as an immediate relative. The petition was later approved. The child turned 21 without having filed an application for adjustment of status or an immigrant visa, and thus converted to the first preference category. This all transpired before the CSPA was enacted. After the CSPA went into effect, the beneficiary in the BIA case, who was residing in the United States, applied for adjustment of status, while the beneficiary in the district court case, who was residing abroad, applied for an immigrant visa. They relied on section 2 of CSPA, now codified in INA § 201(f), which states that children classified as immediate relatives on the date the visa petition is filed will never age-out and convert to the first preference category.

They also relied on section 8(1) of the CSPA, which states that the law applies to visa petitions approved before August 6, 2002, provided no final determination had been made on "the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition." Since neither had previously applied for an immigrant visa or adjustment of status, they had not received a final determination by the CSPA's effective date, and thus were covered by the law.

In both cases, the relevant federal agencies - Department of Homeland Security, Department of Justice, and the Department of State - took the position that the beneficiary could not take advantage of the CSPA's age-preservation provision. They interpreted section 8(1) as requiring the applicant to have filed an immigrant visa or adjustment of status application prior to August 6, 2002 and for that application to have been pending on that date. In neither case was the first preference category current for their priority dates; they could only adjust or consular process if they retained their immediate relative classification.

The BIA first examined the plain meaning of the statutory language and read section 8(1) in isolation to the other CSPA provisions. It concluded that section 8(1) was ambiguous and subject to both parties' interpretation. But reading it in context with sections 8(2) and 8(3) - which expressly provide that the visa petition or application must be pending on the effective date - strengthened the argument that under section 8(1) an application did not have to have been filed prior to the law's effective date. The BIA reasoned that "[h]ad Congress intended to restrict the protections of the CSPA under section 8(1) to only those individuals who had visa or adjustment applications "pending" as of the date of enactment, it presumably would have expressly so stated..."

But the BIA was also persuaded by the legislative history and the congressional intent to "remedy the problem of minor children of United States citizens losing their immediate relative status and being demoted to the family first-preference category as a result of the INS's backlog in adjudicating visa petitions and applications for adjustment of status." It looked at the legislative evolution of the effective date language and found that Congress intended to expand coverage beyond those who had filed an application for adjustment or an immigrant visa on or before August 6, 2002.

The BIA therefore concluded that the CSPA does not require the filing of an application for adjustment of status before August 6, 2002. The law applies to visa petitions filed and approved before August 6, 2002 where the beneficiary turned 21 before that date and failed to file an adjustment by that date. Although the BIA did not specifically reach the issue, had the same beneficiary filed for adjustment or an immigrant visa before August 6, 2002, the application would have to have been pending on that date for the CSPA to apply. If a final denial of the application had been made prior to that date, section 8(1) would bar coverage.

Given the almost 6-year backlog in the first preference category (13-year backlog for applicants from Mexico; 15-year backlog for those from the Philippines), this holding has the potential for affecting a large number of people. Practitioners should review their clients' files to see if any are eligible to take advantage of CSPA's retroactive application. If the client was an immediate relative on the date the I-130 was filed, he or she may be able to claim that status now, rather than waiting for the 1st preference to become current. This new decision will affect beneficiaries from Mexico and the Phillippines more than those from other countries, since they are impacted more from the backlog in first preference.

If the client is residing in the United States and is otherwise eligible to file for adjustment of status, submit the application to the National Benefits Center together with a cover letter explaining why he or she retained immediate relative status. Cite or include a copy of the recent BIA case.

The majority of those who can now take advantage of the BIA's holding are probably in line to consular process. Had they been eligible to file for adjustment of status, they likely would have done so at the time the I-130 was filed, as part of a one-step process. If they had an adjustment application pending on August 6, 2002, they would have been covered by the CSPA under the agency's original interpretation; if the application had been denied before that date due to age-out, they would not be covered by the CSPA under any interpretation. If the client is abroad or is scheduled to consular process, contact the National Visa Center and request reclassification to immediate relative and commencement of the immigrant visa application process.

Effect on Preference Category Beneficiaries

The BIA decision also opens up potential relief to the children of lawful permanent residents (LPRs) who turned 21 before August 6, 2002, but who did not have an application for adjustment of status or an immigrant visa pending on that date. If their adjusted age was under 21 on the date the visa became available, they might be eligible for relief based on the BIA's recent decision. This would allow some second preference 2B beneficiaries who were originally in the 2A category to reclaim that 2A status. It would also help certain derivatives in the other family preference categories who aged out of derivative status.

The difficulty for the preference category beneficiaries is that section 3 of the CSPA requires the beneficiary to have "sought to acquire" LPR status within one year of the visa becoming current. If they had aged out prior to CSPA's effective date, arguably the one-year period would have begun on August 6, 2002, since the family-based 2A preference category would only have become current on that date by operation of the CSPA. But based on the agencies' narrow interpretation of the CSPA, few beneficiaries believed they qualified for relief and thus filed for an immigrant visa or adjustment of status within one year of the visa becoming current. But if they at least requested assistance from an immigration attorney or representative within that one-year window, that might be enough to qualify them under the BIA's broad interpretation of the term "sought to acquire" LPR status. In re Ji Young Kim, No. A-77-828-503 (12/20/04).